Friday, 20 January 2012

Copyright has been much in the news recently, because of the two Congressional bills, SOPA (Stop Online Piracy Act) and PIPA (Protect Intellectual Property Act), which have just led the English-language Wikipedia and some other websites to stage a 24-hour blackout in protest. Here are a few thoughts.

1. Intellectual property does not have any obvious ground in the practicalities of social life, in the way that property in physical goods has. If one person takes another person's bananas without permission, the loser can no longer eat the bananas. If one person copies another's idea or work without permission, the loser can still use the idea or the work. A society without any intellectual property rights is not hard to conceive. A society without physical property rights would be hard to conceive.

2. Given the first point, it is not surprising that intellectual property rights are limited. Patents last for 20 years, literary copyright lasts for 70 years from the later of the author's death and first publication, and so on. Rights have been granted for the benefit of society (encouraging invention and creativity), rather than for the benefit of the holder of the rights.

3. It is not at all clear why intellectual property violations should be a matter for the criminal law, as opposed to civil proceedings by the party that has suffered the violation. The fact that violations are to be treated as criminal is enshrined in international agreements, but violations need not be so treated. If we are concerned with the benefit to society, that benefit is, as already noted, not nearly so obvious as the benefit of respect for physical property. There is not enough of a motive there for criminalization. If we are concerned with the benefit to the holder of rights, we may compare the position on defamation. Someone might reasonably feel that he had property in his good name, and that would be just as reasonable as a feeling that he had property in his ideas or creative output, but that is not thought to justify making defamation a criminal matter, rather than a civil matter.

4. The motives of the corporations who are promoting SOPA and PIPA are obvious. They want to defend their ability to make money. The same thinking lies behind the (so far unpassed) Research Works Act, which would prohibit open access mandates for federally funded research. There is nothing wrong with making money, but the people who want to make it surely have wider responsibilities, not as company directors but as human beings. They should not make it difficult to run websites that attract user contributions (SOPA and PIPA), nor should they make it harder for information to be disseminated freely (Research Works Act), especially not when the taxpayer has already paid for it. There is a parallel with lawyers who seek injunctions and super-injunctions to protect their clients from exposure of the truth. Those lawyers are doing the right thing as lawyers. But if we consider them not as lawyers but as human beings, we can regard their conduct as reprehensible, because they seek to impede free speech.

5. There has been discussion of regulation of the Internet more generally. Some think it is under-regulated. It is certainly home to some nasty stuff. But it is a corner of human activity that governments are not able to control. It shows us that not everything need be governed. That lesson of the Internet is worth heeding.